Citation Nr: 0803380
Decision Date: 01/30/08 Archive Date: 02/08/08
DOCKET NO. 06-28 211 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Boston,
Massachusetts
THE ISSUE
Permanent incapacity for self-support.
.
WITNESS AT HEARING ON APPEAL
The appellant
ATTORNEY FOR THE BOARD
S. A. Mishalanie, Associate Counsel
INTRODUCTION
The veteran served on active duty in the military from March
1946 to March 1949. He died in November. The appellant is
his son.
This appeal to the Board of Veterans' Appeals (Board) arose
from an August 2004 decision of the Department of Veterans
Affairs (VA) Regional Office (RO) in Boston, Massachusetts.
In December 2007, the appellant testified at a hearing at the
RO before the undersigned. A transcript of the proceeding is
of record.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
Under the Veterans Claims Assistance Act of 2000, VA provides
certain benefits for a child of a veteran, who is defined in
part, as a child who is permanently incapable of self-support
by reason of mental or physical defect by or before his or
her 18th birthday. 38 U.S.C.A. § 101(4)(A)(ii); 38 C.F.R. §§
3.57(a)(1)(ii), 3.356. An adjudicatory body's focus of
analysis in such cases must be on the claimant's condition at
the time of his or her 18th birthday. Dobson v. Brown, 4
Vet. App. 443, 445 (1993). Initially, VA must determine
whether the evidence shows the child to have been incapable
of self-support as of his or her 18th birthday. Id. If so,
the second part of the two-part test requires consideration
of evidence as to the current condition of the child. Id.
VA is obliged to provide an examination when the record
contains competent evidence that the claimant has a current
disability or signs and symptoms of a current disability, the
record indicates that the disability or signs and symptoms of
disability may be associated with active service; and the
record does not contain sufficient information to make a
decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002);
McLendon v. Nicholson, 20 Vet. App. 79 (2006).
The VCAA criteria do not correspond with the requirements for
recognition as a "helpless child" under 38 C.F.R.
§ 3.57(a), but do make clear that VA is required to provide
an examination when the evidence is insufficient to make a
decision on the claim.
The current record shows that the appellant was awarded
Supplemental Security Income by the Social Security
Administration in 1974, and that he applied for those
benefits in December 1973, approximately 7 months after
reaching the age of 20. He testified however, that he had
never been able to earn sufficient income to become
independent of his parents, and that he was fired from all
jobs shortly after beginning them. He reported that he was
unable to keep up with the demands of employment due to a
congenital deformity of the hand, and depression. His
testimony provides competent evidence that he may have been
incapable of self support prior to reaching the age of 18.
There is no medical opinion on this question. Hence an
examination is necessary.
This case is remanded for the following:
1. Afford the appellant general medical
and psychiatric examinations to obtain an
opinion as to whether he became incapable
of self support prior to reaching the age
of 18. The examiner(s) should review the
claim folder, and render an opinion as to
whether the appellant's disabilities as
likely as not (50 percent probability or
more) caused him to be permanently
incapable of self support prior to
reaching the age of 18 in May 1973. The
examiner(s) should provide rationales for
all opinions.
2. If the benefit sought remains denied,
the agency of original jurisdiction
should issue a supplemental statement of
the case before returning the case to the
Board, if otherwise in order.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007).
_________________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2007).